A weblog for students engaged in doctoral studies in the field of human rights. It is intended to provide information about contemporary developments, references to new publications and material of a practical nature.

Sunday, 7 February 2016

“The fourth is freedom from fear—which, translated into world terms, means a world-wide

reduction of armaments to such a point and in such a thorough fashion that no nation will be in

a position to commit an act of physical aggression against any neighbor—anywhere in the world.”

– Franklin Delano Roosevelt

I am delighted, as part of the University of Iowa Center forHuman Rights’ 75th anniversary celebration of the Four Freedoms Speech, to consider Roosevelt’s fourth and final freedom – freedom from fear. David Keane pondered whether the four freedoms ought to be considered in terms of hierarchy and he suggested that freedom of speech might come out tops – not just because it is the first of the freedoms but because freedom of speech is a “gateway” right. This may be so but freedom from fear outranks the others in its own ways. On the one hand, freedom from fear was the most ambitious of Roosevelt’s four (although ‘freedom from want’ puts up quite the challenge). Freedom from fear represented the aspiration of an international prohibition on aggression or, indeed, the “human right to peace”[1]. There is though another way of reading Roosevelt’s fourth freedom. Freedom from fear was in fact the leitmotif of the entire speech. Fear is invoked ambiguously – equivocally, even – both as a provocation, to rally public support and to justify American intervention in the war, and as a promise, of future freedom. In other words, Roosevelt was telling the American public – in order to enjoy this freedom, in order to secure freedom from fear, we must go to war. From a rhetorical perspective, by neatly and rhythmically rounding off the four freedoms, freedom from fear represented the alliterative crowning glory of Roosevelt’s speech and his call to intervention.

As Shane Darcy and Brian Farrell have noted, Roosevelt’s four freedoms sowed the seeds for the post-war international order and also played a sizeable role in the development of the international system of human rights. So where, beyond the preamble of the Universal Declaration of Human Rights, does freedom from fear feature in this international system? What does freedom from fear even mean? And, perhaps more importantly, how are we doing in the achievement of this freedom?

Freedom from aggression is not as aurally evocative but that is essentially what Roosevelt meant by freedom from fear. His vision, on a surface reading of the speech, was an end to aggressive wars precipitated by an end to the production of arms. The Atlantic Charter, the joint declaration signed by Churchill and Roosevelt in Newfoundland in August 1941, articulating their war aims and their vision of a post-war international order, incorporated, and elaborated on, the idea of freedom from fear. Principle six envisaged: “…after the final destruction of the Nazi tyranny … a peace which will afford to all nations the means of dwelling in safety within their own boundaries, and which will afford assurance that all the men in all lands may live out their lives in freedom from fear and want”. Principle eight contemplated a ban on the use of force in international relations and the disarmament of aggressive nations: “… all of the nations of the world, for realistic as well as spiritual reasons must come to the abandonment of the use of force. Since no future peace can be maintained if land, sea or air armaments continue to be employed by nations which threaten, or may threaten, aggression outside of their frontiers …. pending the establishment of a wider and permanent system of general security … the disarmament of such nations is essential.”

The United Nations Charter – conceived of and drafted in the throes of the war – codifies a system of collective security, underpinned by the infamous ban, under Art 2(4), on the threat or use of force in international relations. The Charter specifies exceptions to this ban. Under article 42, the Security Council is authorised to take measures “as may be necessary to restore international peace and security”. Under article 51, Member states are endowed with “the inherent right of individual or collective self-defense if an armed attack occurs against a Member”. More recently, in 2010, following a fraught process, the Rome Statute of the permanent International Criminal Court (established in 1998) was amended to include the crime of aggression. The Rome Statute defines in detail an act of aggression as a manifest violation of the UN Charter and provides a jurisdictional regime for the prosecution of that crime. The limitations to and the challenges inherent in the UN Charter use of force regime are well known. These range from interpretative indeterminacy around the scope and meaning of “armed attack” and of self-defense to endless debates around the legality or propriety of humanitarian intervention. The permanent membership of the Security Council, invested as it is with the authority to determine threats to international peace and security, exacerbates the legal and political contestation. For interpretative and geopolitical reasons, it is easy to see that the prosecution of the crime of aggression will be a challenge.

Do, then, the UN Charter and the crime of aggression fulfil Roosevelt’s aspiration of freedom from fear? Certainly, Roosevelt would have applauded the international prohibition and criminalisation of acts of aggression. He did not, however, only advocate a legislative ban on aggression. He saw a direct link between the production of arms and the use of force. His vision was, arguably, not just for a ban on the use of force but for a ban on the production of weapons in order to deter or prevent aggression. The United Nations does promote nuclear disarmament and non-proliferation as well as the disarmament of biological, chemical and conventional weapons. The Office for Disarmament Affairs admits to some of the challenges it faces – political and technical. But let’s be clear, the biggest challenge to disarmament is economic. Weapons are big business.

The disarmament paradox was explicit in Roosevelt’s speech. He asked Congress outright for the authority to manufacture additional munitions and war supplies for the Allies and for American defense. There may be little doubt today about the justification for this supply of “ships, planes, tanks, guns” or the propriety of American involvement in the war. But this is the point – just war is always in the eye of the beholder. The beholder is rarely the aggressor. Weapons’ manufacture is always for defense. Roosevelt’s speech was not a call to global disarmament nor was it an absolute appeal to end aggression – it was an appeal to end ‘their’ access to arms, their aggression. From a political, military or foreign policy perspective, this, for many, is not controversial – of course a nation will justify its own defense and its resort to war. However, this speech is memorialised for the four freedoms that Roosevelt envisaged. Those four freedoms may now be reflected in international human rights law. The strategy of Roosevelt’s speech is also an enduring one, however. Just as in 1941, today, freedoms and rights are instrumentalised, and reflected, in justifications for armed conflict, self-defense and military/humanitarian intervention.

Freedom from fear was one of the ‘ends’ of Roosevelt’s policy. But fear was also one of his means to achieve this ‘end’. His speech opened with the spectre of the unprecedented threat – “No previous time has American security been as seriously threatened from without as it is today”. It culminated in an invocation of the “supremacy of human rights everywhere”. To bridge that gap, it was necessary to fight for rights, literally.

Without a doubt, Roosevelt’s words had impact. But freedom from fear, and what it represents, was then, and remains, a slippery concept.

[1] See William A. Schabas, ‘Freedom from Fear and the human right to peace’ in David Keane and Yvonne McDermott, The Challenge of Human Rights: Past, Present and Future (Edward Elgar, 2012) 36 for a discussion of freedom from fear as the forgotten human right to peace.

The first and second of the Four Freedoms articulated by President Franklin Delano Roosevelt during his State of the Union speech on January 6, 1941, would have seemed familiar and comfortable to most listeners. After all, the freedom of speech and freedom of religion were two classic limits on the power of government – what we often call “negative” rights, or civil and political rights. Such rights were at the core of the American constitutional order, enshrined in the Bill of Rights.

As Roosevelt continued his speech, he identified two additional Freedoms of a very different character. The third of the Four Freedoms was “freedom from want – which, translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants – everywhere in the world.” This was followed by freedom from fear. Unlike the first two Freedoms, these did not limit government interference with the individual; rather, they contemplated an affirmative government obligation to deliver these societal necessities to its citizens.

Although not rooted in the Bill of Rights in the same way as the previous Freedoms, the freedom from want would not have appeared as an entirely novel concept. It evoked the legislative development of a social safety net as part of Roosevelt’s domestic New Deal. Earlier in the speech, the President pointed to economic security as one of the foundations of a healthy democracy. He called for “Equality of opportunity for youth and others. Jobs for those who can work. Security for those who need it. The ending of special privilege for the few.” The rise of European fascism in the 1930s was at least partially a result of the dire economic conditions that prevailed during the early years of the Depression. Freedom from want, then, was not just an altruistic goal. It was also a strategy aimed at ensuring a stable and peaceful post-war world.

Indeed, when the Universal Declaration of Human Rights was adopted by the United Natiosl General Assembly on December 10, 1948, it proclaimed that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world.” Among the inalienable rights enumerated in the Universal Declaration were the right to social security (Ar. 22); the right to work (Art. 23); and the right to an adequate standard of living, “including food, clothing, housing, and medical care” (Art. 25).

While the freedom from want was articulated in these and other articles of the Universal Declaration, the Declaration itself was framed as being a “common standard of achievement,” rather than a binding legal document. Thus, the question of how to interpret and enforce these principles did not carry immediate urgency. As the human rights system matured, however, such issues became troublesome. Was a state truly under an obligation to guarantee jobs for all? What level of housing or medical care was “adequate?” Would these answers be viewed differently depending whether a state was poor or wealthy? Moreover, the discourse became colored by the politics of the cold war, as Soviet bloc states frequently advocated for these economic and social rights while Western states championed civil and political rights.

Ultimately, the effort to create a binding human rights framework was bifurcated, and two treaties emerged from the General Assembly in 1966: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. The split has been viewed by many as unfortunate because it can lead to “prioritization” of rights (usually the view that the rights in the former treaty take priority over the latter). In any event, the two Covenants frame state obligations differently. Whereas the Covenant on Civil and Political Rights simply directs states to respect and ensure those rights, the Covenant on Economic, Social, and Cultural Rights takes a different approach. It requires that each signatory “undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measure.” This language recognizes that, unlike, for example, the prohibition against torture, many economic and social rights cannot be immediately realized and are dependent on a state’s resources.

Following adoption of the Covenant there have been further attempts to clarify how freedom from want is to be understood and implemented. In 1999, for example, the U.N. Committee on Economic, Social, and Cultural Rights adopted a “general comment” on the right to food. It explained that the right to food meant the availability of food in a quantity and quality sufficient to satisfy the dietary and cultural needs of individuals, in a sustainable manner. The Committee went on to identify three levels of state obligation: first, a state cannot prevent existing access to food; second, it must protect against interference with an individual’s access by third parties; third, it must engage in activities intended to strengthen access to and production of food; and fourth, it must provide food if an individual is unable to secure food for reasons beyond their control.

In turn, these obligations beg the question of enforcement. It is not unusual for a court to find a person has been unlawfully detained and order them released from jail, but the same judge may be much less comfortable determining whether a state has met its obligations under the right to an adequate standard of living. And if violation is found, how does the court compel a state to implement legislative policies and allocate resources to fulfil its obligations, particularly if the state does not have the financial resources to do so? These are difficult issues that reflect as much about the judiciary as about the nature of economic and social rights, although courts in countries like India and South Africa have shown that courts can address such issues.

Of course, the complexity of interpreting and enforcing economic and social rights highlights the very existence and growth of these rights. “Freedom from want,” a principle articulated by an American president in 1941, has actually been incorporated into the international post-war order in the form of binding universal human rights. This, in itself, is quite remarkable.

Dr. Brian Farrell is Lecturer in Law and Associate Director of the Center for Human Rights at the University of Iowa.

The Editorial Team

W. Schabas, Y. McDermott, J. Powderly, N. Hayes

William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr YvonneMcDermott is Senior Lecturer in Law at Bangor University, UK, where she is also Director of Teaching and Learning and Co-Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (Ph.D.). Her research focuses on fair trial rights, international criminal procedure and international criminal law. She is the author of Fairness in International Criminal Trials (Oxford University Press, 2016).

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

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Interested in PhD studies in human rights?

Students interested in pursuing a doctorate in the field of human rights are encouraged to explore the possibility of working at Middlesex University under the supervision of Professor William A. Schabas and his colleagues. For inquiries, write to: w.schabas@mdx.ac.uk.